EPA Finalizes Coal Ash Regulation Rollback That Could Delay Toxic Pond Closures

Decision gives companies an extra year to continue storing coal ash in ponds, but loopholes could postpone pond closures until 2028.
July 31, 2020

The Trump administration has finalized changes to a 2015 rule that will give the owners and operators of coal ash ponds more time to store toxic coal ash and pushes back a deadline to close those ponds.

The U.S. Environmental Protection Agency rule finalized July 29 meets and expands on court-ordered changes to the 2015 Disposal of Coal Combustion Residuals from Electric Utilities rule, also known as the Coal Combustion Residuals Rule.

Pre-publication version of the rule finalized July 29.

Coal combustion residuals, also known as coal ash, are toxic waste created by burning coal to generate electricity. It can contain mercury, lead, arsenic and other toxic materials that can cause cancer, lung and heart problems or even death.

Coal-fired power plants generate about 110 million tons of coal ash nationwide every year. The ash is often stored in surface enclosures called ponds.

Indiana has the largest number of ponds and other disposal sites of any state. Dozens are located near groundwater sources.

A federal appeals court in 2018 ordered the EPA to stop classifying clay-lined coal ash impoundments as “lined,” which allowed them to operate indefinitely despite limited protection capability, to stop exempting inactive ponds from regulation and to review several regulations in the 2015 rule.

The new rule meets requirements set by a federal court in a 2018 case and sets new deadlines for receiving waste at coal ash ponds.

The new rule reclassified clay-lined ponds and gave those and other unlined ponds six more months to accept coal ash. The EPA also extended the waste receipt deadline for coal ash ponds that do not meet the “minimum depth to aquifer location standard” of five feet above the upper limit of the uppermost aquifer in an area.

Coal ash pond operators that fall under certain provisions now have more years to find new places to accept their waste before they need to begin the process to close their pond.

The new rule will also make several changes in annual groundwater monitoring and corrective action report intended to make the data easier for the public to understand and evaluate.

“Today’s action makes changes to the closure regulations for coal ash storage that enhance protections for public health while giving electric utilities enough time to retrofit or replace unlined impoundment ponds,” said EPA administrator Andrew Wheeler in a news release. “The public will also be better informed as EPA makes facility groundwater monitoring data more accessible and understandable.”

It’s unclear how the rule will affect coal ash pond closures in the state of Indiana.

Coal ash disposal sites in Indiana. Source-HEC

The Northern Indiana Public Service Co. told the Indiana Environmental Reporter that the new rule would not change its plans to close five coal ash ponds at the Michigan City Generating Station in spring 2021.

NIPSCO said it plans to transition away from coal in the next decade, but companies that still depend mainly on coal-fired power plants, like Duke Energy, and national coal trade organizations like America’s Power back the rule, saying it gives facilities much-needed time to meet federal requirements.

“If EPA were to establish unachievable closure deadlines that resulted in the forced idling of existing coal-fired generation, electric reliability could be jeopardized in regions where the idled plants are located,” America’s Power wrote in comments to the EPA.

Environmental advocacy groups said the rule will “significantly delay” the closure of dangerous coal ash ponds, and exemptions and loopholes will allow utilities to postpone closing the ponds until as late as 2038.

The National Caucus of Environmental Legislators, an organization consisting of 165 state legislators from 35 different states including Indiana, called for the EPA to abandon the rule before it was finalized, saying that the rule would extend the operating life of “unstable and dangerously-sited coal ash dumps that are contaminating groundwater.”

“The EPA’s proposal to weaken existing coal ash safeguard and to roll back water pollution limits for coal plants are big concessions to the power plant industry at the expense of the health of communities in our states,” the organization said in comments to the EPA.

Earthjustice, a nonprofit environmental legal organization said the delay could allow utilities to dump millions of tons more of coal ash into the ponds, threatening groundwater and wetlands in seismic areas.

The group said it intends to file a lawsuit against the EPA over the new rule.

“If it weren’t for the Trump administration, the dumping of toxic coal ash into leaking ponds would have stopped over a year ago,” said Lisa Evans, senior counsel for Earthjustice. “Every day hazardous coal ash is polluting drinking water, lakes, rivers and streams around the country. This is yet another time that the administration put the interests of lobbyists before the health of Americans. We’ll see the Trump administration in court.”

Earthjustice is representing several environmental organizations, including Indiana’s Hoosier Environmental Council, in a separate lawsuit accusing the EPA of illegally limiting public input in the months prior to finalization of the rule.

The organizations claim the EPA refused to hold in-person public hearing, impairing the organization’s and its members’ ability to “effectively communicate their grave concerns” about the rule. They want the court to force the agency to hold an in-person hearing when it is safe to do so and re-open the comment period on the rule.

The case is being heard in the U.S District Court for the District of Columbia.

EPA Finalizes Coal Ash Regulation Rollback That Could Delay Toxic Pond Closures